2013 (9) TMI 701

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....efractory bricks. The refund claim was rejected by the assessing officer and the appellant preferred an appeal which was allowed vide an order-in-appeal dated 24/07/1998. The said order-in-appeal was accepted by the Revenue. In pursuance to the said order-in-appeal, the refund claim of the appellant was once again considered by the adjudicating authority after following due process of law. The adjudicating authority allowed the refund amounting to Rs.81,28,725/- but credited the same to the Consumer Welfare Fund in terms of Section 27 (2) of the Customs Act, 1962 on the ground that the appellant did not lead any satisfactory evidence to show that they have not passed on the incidence of duty burden to anybody else. The appellant preferred a....

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.... case of SRF Ltd., Vs. CC, Chennai, reported in 2006 (193) ELT 186 (Tri-LB) in support of his contention. 5. We have carefully considered the rival submissions. 5.1 From the records of the case it is seen that the appellant did not lead any evidence before the adjudicating and lower appellate authority showing that the incidence of duty burden has not been passed on to any other person. They produced only a Chartered Accountant's certificate stating that the appellant, M/s. Bharat Electronics Ltd. are the actual users of the bricks and the incidence of duty claimed as refund was not included as cost in the price of the manufactured goods. 5.2 The Hon'ble apex Court in the case of Solar Pesticide Pvt. Ltd., considered the question of unju....

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....y in respect of imported capital goods captively consumed in the manufacture of excisable goods. The same decision was followed by this Tribunal in the case of Western Coalfields Ltd. wherein also this Tribunal held as follows, in the context of Section 11B of the Central Excise Act. Plain reading of the above provision would disclose that the same apparently does not make any difference between the duty paid on the final product or the inputs or the capital goods, the provision nowhere specifies that in case of duty paid on capital goods, the assessee claiming the refund need not establish that he had not passed on the duty burden to a customer, the provision of law, therefore, apparently applies to all the cases of refund including the ca....